Delta Diagnostic Radiology, P.C. v MVAIC

[*1] Delta Diagnostic Radiology, P.C. v MVAIC 2014 NY Slip Op 51261(U) Decided on August 8, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 8, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-1034 K C

Delta Diagnostic Radiology, P.C. as Assignee of JUNIOR BISHOP, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 23, 2012. The order denied defendant's motion to vacate an order of the same court entered August 16, 2011, which had granted, on default, plaintiff's motion for summary judgment.

ORDERED that the order entered April 23, 2012 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate an order of the same court entered August 16, 2011, which had granted plaintiff's motion for summary judgment on default. Although MVAIC contends that plaintiff's assignor was not a qualified person because he had failed to demonstrate that he was a New York resident (see Insurance Law § 5202 [b]), the record establishes that defendant received a notarized notice of intention to make claim form, executed by plaintiff's assignor, as well as a police report, both of which set forth the New York residence of plaintiff's assignor (see generally Insurance Law § 5221 [b] [2]). Consequently, MVAIC's conclusory assertion that these sworn documents are insufficient to satisfy Insurance Law § 5202 (b) and that further documentary proof is required lacks merit (see Allstate Social Work & Psychological Svcs, P.L.L.C. v MVAIC, 36 Misc 3d 141[A], 2012 NY Slip Op 51498[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Complete Med. Servs. of NY, P.C. v MVAIC, 33 Misc 3d 127[A], 2011 NY Slip Op 51835[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: August 08, 2014